Tips to Avoid Malpractice Claims

1. 1. Intake Process
      1. Initial call friendly greeting and quick appointment
      2. Conflict check run before appointment is scheduled
      3. Clearly give expectations for first appointment
      4. No surprises, if you charge a consultation fee let them know

1. 1. Initial Appointment
      1. Have client complete an intake sheet so their information in their handwriting
         1. We have intake form online and ask they complete and return before appointment so they are in our system
         2. If they hand write intake sheet, make sure you correctly understand telephone numbers, e-mail addresses, and home addresses
      2. What is on your intake form
         1. Does it clearly state that the you are not their lawyer until they have signed a written fee agreement and paid the advanced fee?
         2. Does it clearly state that they should not use their work e-mail for communications?
      3. Meeting with attorney.
         1. We have the attorney run a conflict check again. Sometimes people do not give you the correct name using nicknames, maiden names, previous married names and the like. Sometimes you find that you may represent a witness or spouse of the other party.
         2. Get a detailed fee agreement signed by the client.
         3. Make sure expectations are set. Explain the billing process, i.e. billing for telephone call, e-mails, copies, mileage, Westlaw etc.
         4. Evaluate whether you really want this person. If you are having a hard time getting them to listen or to take your advice, best to not start a relationship. If they cannot afford a reasonable advanced fee, then do not take the case. People who do not pay their bills are looking for a reason not to pay so they will find a reason not to be happy with your work. Be cordial to clients. Studies of medical malpractice show that of blind review of medical procedures where the files were divided by ones where malpractice occurred and ones that did not, majority of the cases where there was no malpractice but doctor was sued, the patient said their doctor was not friendly. Of the ones where malpractice did occur and no suit was filed, the patients said the doctor was a nice person and people make mistakes and they did not choose to sue.

1. 1. After the initial appointment.
      1. If they sign a fee agreement and pay you advanced fee send them a follow up letter giving them assignments on the information and documentation they need to provide you.
      2. At end of appointment if there are documents you need them to complete give them copies with detailed explanations on what they are being asked to do and the deadlines. I have a checklist for files with what has been requested and the deadline I have given the client.
      3. Send them a letter confirming they have not hired you.
      4. Be responsive to your clients. Most complaints filed against lawyers are for not getting back with a client. If you had bad news you should give it to them personally and certainly you do not want their opponent to run it in.

1. 1. During representation
      1. Give them things to do.
      2. Set your system to report to them periodically, (our system defaults to 30 days).
      3. Set up a system where they can have access to information in their files but you control what they have access to. For example, set up a Dropbox file that you can put documents in and so can they which is a more secure way of sending them information than e-mail. If you use Facebook Messenger, the default is to allow Facebook to read your messages. You should either not use this method or make sure you change the default to encrypted. Our practice management system has a portal where we can send them messages, show them calendar events, and give them access to documents.
      4. You should have a system set up that keeps track of deadlines. Judges are beginning to exclude evidence not exchanged in discovery. It should not need to be said that blowing a statute of limitations or deadline on appellate briefs or responsive pleadings on summary judgment will clearly end with you in a malpractice action.

1. 1. Withdrawing from a case
      1. Do not charge your client to withdraw from the case. Matter of Coleman, No. 98S00-1301-DI-52, 2017 WL 345161 (Ind. Jan. 24, 2017).
      2. Comply with the local rules and the Rules of Professional Responsibility.
         Do not keep the file. Under Indiana Law you may have a retaining lien but you are asking to get sued and if you are at the point of withholding a file, it is not a good situation. Bennett v. NSR, Inc., 553 N.E.2d 881, 882 (Ind. Ct. App. 1990).
      3. Do not turn over the file to anyone, including another lawyer, without your client’s written instructions. You continue to have a duty to protect client confidentiality and you are waiving it by giving the file to another lawyer without your client’s instructions. We do not charge clients to copy their file as we are paperless so we give it to them on a disk, through Dropbox or Hightail which gives us a paper trail, albeit digital, of the transaction.

1. 1. The case is over.
      1. Withdraw from the case. You do not want to be of record years later and something arises and you count as service and you have no idea where your former client is.
      2. Send client a letter explaining the case is over, if it is against them their appeal rights along with deadlines and what they need to do, whether you will take an appeal and under what conditions.
      3. Send out final bill or if you have money left from the advanced fee, then send them a final itemized bill with refund check saying that this closes the matter, give them a reasonable time to retrieve any original documents you might have.
      4. If there are things they need to do such as change beneficiaries, change will, etc. inform them.

1. 1. If after case is over and you have not been paid.
      1. Have a firm meeting or executive meeting to discuss if it makes sense to pursue the balance.
      2. To quote Elvis Presley, “Fools rush in where wise men never go…” You have 6 years for unwritten fee agreement and 10 years for written fee agreement. Many insurance companies will not cover you if you sue clients within 2 years of the termination of the relationship. A big cause of malpractice actions is counterclaims to fees suits.
      3. Try taking payments, discounts or write it off. Evaluate the case as if you were advising a client. Some lawyers think they are pursuing fee cases for free, but then they are thinking like clients, i.e. your time does not cost anything.
      4. Every February we send out letters to clients with large balances to accept a reduced amount by generally 10% less if they pay by March 1. Many get tax refunds and they save money and you get paid.

1. 1. Dealing with pro se opponents.
      1. CYA. We have a letter that we send or hand a pro se opponent every time we write them or meet with them. We also tell them on any telephone or e-mail communication. If you enter an agreement with them make sure the same type information is included in any written agreement.
      2. You owe a duty of honesty to pro se opponents just as you do with an attorney or court.

1. 1. Practice Management software.
      1. There are many practice management software programs available and you should spend time studying them. Ask other attorneys what they use and what they like and dislike.
      2. Once you have purchased them get familiar with them and use their functions. Most have free online training sessions and you should take advantage of them.

1. 1. You must be technology literate
      1. Do you have online research materials? When preparing this paper, I researched the statute of limitations and Westlaw had the 10-year statute listed as unconstitutional based upon an Indiana Court of Appeals decision from April, 2016. That decision was vacated by the Indiana Supreme Court January 3, 2017. The Court of Appeals decision also only ruled that the statute was limited in certain circumstances involving federal preemption.
      2. Failure to stay up on technology may soon be a violation of the Rule of Professional Responsibility. 26 states have adopted the ABA model rule making this a rule for an excellent article read Above the Law.

Prepared by Richard A. Mann of Mann Law, P.C. Attorneys at Law, www.rmannlawoffice.com

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This blog does not constitute legal advice nor does it establish an attorney client relationship.  This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

This article was included in the ICLEF Seminar  

WHAT EVERY LAWYER NEEDS TO KNOW ABOUT MALPRACTICE INSURANCE

https://iclef.inreachce.com/Details?groupId=425a4616-a3e3-4e49-a56c-ae688aa18c33

Attorneys can watch the entire presentation including from Adam Gwaltney of Ritman and Assoc and receive Indiana CLE credit using the link above.